On the 18th of September, 2019,
the President of India promulgated an ordinance
prohibiting electronic cigarettes, imposing penalties up to one year of
imprisonment and a fine of one lakh rupees for violating the ban. In spite of
the immediate reactions of e-cigarette manufacturers, as well as various
petitions in High Courts throughout the country, it is finally possible, as the
smoke has settled, to examine the constitutionality of the ban. In this post,
we advance a transformative reading of the presumption of constitutionality,
arguing that it is concomitant with
the test of arbitrariness under the Indian Constitution’s equality code.

While there exists evidence that e-cigarettes,
which produce an aerosol by heating a complex solution of chemicals that may
contain nicotine (though in lighter quantities), cause health problems, there
is no conclusive evidence that they pose a long-term health risk comparable to
that of conventional combustible cigarettes.
Cigarettes, however, remain merely taxed and
regulated, while e-cigarettes and other vaping products are now flatly
illegal. This is perplexing. Why do cigarettes, an acknowledged and proven
health risk, remain freely available, while e-cigarettes are banned?

In this post, we argue that this logical discrepancy violates the Constitution of India. The argument is based on the conventional doctrines of reasonable classification, arbitrariness and proportionality (Part I). Further, the Government, has a vested financial interest in the largest tobacco company in India. Legalarguments are, of course, separate from the logical and public policy problems with the ban. We argue, however, in this circumstance, that claims generally seen as persuasive policy arguments shift the presumption of constitutionality and impose a direct burden on the state in the context of constitutional litigation by virtue of their vested interest (Part II).

Part I—The Right to Equality and the Freedom of Profession

Article 14 guarantees
equality before the law and equal protection of the law. Under the Supreme
Court’s jurisprudence, state action is tested against Article 14 using the
doctrine of reasonable classification – a twin-test that asks: first, whether
there is an intelligible differentia (i.e. a basis for the classification); second,whether that basis had a rational nexus with the legitimate objective the
state purports to achieve.

In this case, the only
distinction between combustible cigarettes and electronic cigarettes is the
nature of technology – the former uses combustion and tobacco leaves whereas
e-cigarettes use liquid nicotine and a battery. But if the objective is to
promote public health, e-cigarettes are, if anything, less harmful than combustible cigarettes.

Here, we think it important
to note that constitutional challenges to the ordinance need not show that cigarettes
are more harmful than e-cigarettes. The doctrine of reasonable classification
requires that equals be treated equally. Even if, public health being the
criterion, e-cigarettes are as harmful as conventional cigarettes (which they
are not, according to present scientific evidence), that one is banned and the
other is regulated violates the test of reasonable classification.

Exercises
of the police power must be justified under Indian Constitutional Law
against the standards of the doctrine of arbitrariness, which prohibits non-application
of mind that does not adequately consider public interest. A complete ban,
neglecting less drastic measures such as a regulatory framework in line with
the WHO’s recommendations, is arbitrary and disproportionate, and therefore,
violates the fundamental right to equal treatment.

Part II—The Presumption of Unconstitutionality: The Doctrine of Vested Interest

Less drastic alternatives that regulate
e-cigarettes were neglected. This might, as we noted in our introduction, seem
perplexing. India, however, is not the first country to enact such a selective
ban. A number of countries which do not ban tobacco products in general have
banned e-cigarettes. But India is unique in another sense.

In order to address
the matter of the constitutionality of the ban, we must acknowledge the cloud
of impropriety that hangs over the entire ordinance. Three facts induce us to
draw conclusions of impropriety about the Government’s move. First, the
Government of India and other state-owned companies, at the time of the ban, owned nearly 29% of ITC Ltd., India’s largest manufacturer of combustible
cigarettes. Second, the move came before the major expansion of e-cigarettes into
the Indian market. Third,
the ban eliminated the possibility of a legal
e-cigarette industry, caused a commensurate rise in the share prices of tobacco
companies, and ignites concerns of denial of market access in the realm of
competition law as well.

In a weak sense, this merely
provokes concern that the Government is using the health of individuals as a
smokescreen for an increase in revenue. Being the largest shareholder of the
largest tobacco company gives the government a direct incentive not to advance public health. But the claim we advance
here imposes a heavier burden on the state as a matter of constitutional law. Narratives of constitutional injustice have thus far
failed to take into account motive as a determinant of the presumptions
surrounding arbitrariness. We argue that evidence of a clear contrary vested interest
should impose a presumption against the government’s claim that they seek to advance public health and reverse the presumption of
constitutionality.

The Supreme Court has also
broadly validated this non-deferential approach to state justifications. In a
landmark 2018 decision decriminalising homosexuality, a formalistic approach to
Art. 14 was rejected in favour of a higher standard of scrutiny, holding that in
issues of high importance, courts were justified in granting considerably less
deference to the legislature than would otherwise be the case. Our proposed
doctrine of vested interest, in this case, would apply as an additional burden
imposed on the state where the situation demands a justificatory approach.

The existence of a vested
interest should shift the presumption of constitutionality and require the
courts to apply a stricter standard of scrutiny. Of course, since the
government has a vested interest in a policy that is contrary to the public
interest, it does not necessarily follow that they acted in violation of
Article 14. However, in this case, the Government had two reasonable
alternatives: ban both cigarettes and e-cigarettes; or tax and regulate both. Instead,
they chose the sole alternative that advanced the vested interest, while
regressing public health.

This claim is based on two concomitant
circumstances. First, banning e-cigarettes completely deprives conventional
smokers of a safer alternative, which often operates as a means to quit. Further,
the Government defends its ban by
stating that the addictive nature of e-cigarettes has a particular influence on
the young. However, banning them completely merely pushes e-cigarette users into
the proven health risk of smoking conventional cigarettes.

Therefore, there
exists no possible justification for a complete ban on e-cigarettes, as opposed
to any other regulatory alternative – except, of course, if we consider the
vested economic interest of the state in the regression of the public’s health.

Conclusion

These arguments are not merely academic, not only to the extent that equality before the law and equal protection of the law are important constitutional principles, but also in light of the impropriety of the entire affair tested against the vested interest doctrine. To violate fundamental rights, to invoke (and thereby violate) the sanctity of the Directive Principles of State Policy, to cite risks to public health on the basis of no enquiry and no evidence, and to do all of these things in order to colourably eliminate an entire industry – no body of constitutional law should fail to address the vested-interest-based considerations of the Government. We argue, instead, that constitutional law must take account of this evasion by reversing the presumption of constitutionality and help advance a long-awaited shift in Indian Constitutional Law, from a culture of authority, to a culture of justification.

3 Responses

Permitting E cigarettes – the chemicals in liquid or powder form facilitates propagation of “drugs” while normal cigarettes do not. So this reason can be substantiated in banning e-cigarettes while regulating only of conventional cigarettes…

It is indeed a perennial dilemma for practitioners of statecraft to choose between Scylla and Charybdis. Either way the decision-makers will be damned. Lawyers of respective sides can eloquently argue their cases for cigarettes and/or e-cigarettes. For a health-conscious person, however, both are equally to be kept at bay. Likewise, those who love smoking or have become slaves of such habits, cannot be deterred by any ban. Such mundane measures may not dampen their enthusiasm.

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